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Tuesday, February 15, 2011

Charge George W. Bush with war crimes?

Editor's note: David Frum writes a weekly column for CNN.com. A special assistant to President George W. Bush from 2001 to 2002, he is the author of six books, including "Comeback: Conservatism That Can Win Again," and is the editor of FrumForum.

Washington (CNN) -- Charge George W. Bush with war crimes?

Some Bush critics have for years demanded a prosecution of the former president. They had hoped that the incoming Obama administration would put Bush on trial. No luck.

Now they have changed their focus, filing actions in foreign courts. Last week, these Bush opponents filed an action in Switzerland in advance of a Bush appearance at a charity fundraiser in Geneva.

Shortly after the filing, the Bush appearance was canceled. Bush is in no danger of going to a Swiss jail, obviously. But it's important that all Americans understand: This use of law as a weapon of politics is an assault upon the basic norms of American constitutional democracy.

American presidents are subject to law, of course: American law.

In the case of torture -- the offense of which Bush's critics accuse the president -- the relevant law is the War Crimes Act of 1996, which provides penalties up to the death penalty for abuse of military detainees.

This law was adopted in conformity with U.S. obligations under the 1986 Convention Against Torture, which called upon all signatory states to "ensure that all acts of torture are offences under its criminal law." (It's often said that the convention "bans" torture, but that is not correct: It creates an obligation on member states to ban torture by their own nationals.)

This use of law as a weapon of politics is an assault upon the basic norms of American constitutional democracy.--David Frum

In 2001, Bush asked government lawyers: What exactly constitutes "torture" under U.S. law? Is isolation torture? Sleep deprivation? What about putting an insect in the cell of a prisoner frightened of insects? How about waterboarding?

Bush asked those questions precisely because he wanted to comply with the law. He wanted to go up to the limit of the law, but not beyond. That's why he wished to know where the limits were found.

The legal answers Bush got -- and the methods his administration used -- have divided Americans for almost a decade. Republicans lost the 2008 election, and the Obama administration changed policy. Which is how we decide policy questions in the United States: by elections and alterations of government.

When it entered office, the Obama administration considered prosecuting the CIA officers who had done the interrogations. It seems to have considered legal action against higher-ranking officials, too. The Obama administration rejected both options.

So when people file actions in Switzerland against Bush, it's not merely the former president they are targeting. They are targeting the entire American legal system. They are demanding that Switzerland override an American decision about which Americans should be prosecuted for violating an American law.

They want Switzerland to say the following:

"We disagree with your attorney general's interpretation of your War Crimes Act. We are therefore arresting you in Switzerland for acts you ordered in the United States against armed military enemies of the United States.

"We will put you on trial in Switzerland, where none of the protections of the U.S. Constitution apply. Instead, you will be tried according to the rules of Swiss law -- even though you had no vote in the making of that law and have no legal representation in the Swiss government.

"Admittedly, none of the acts here have any legal connection to Switzerland at all. None of the people involved are Swiss, neither the alleged torturers nor the alleged torturees. Our involvement is purely coincidental; this action could just as easily have been brought in Luxembourg or Uruguay."

In other words, what the people bringing actions against Bush are calling for is a new kind of global legal regime in which law is severed from political representation. Call it human rights without democracy.

The opinions expressed in this commentary are solely those of David Frum.